Rhys Brooker v Eastern Metropolitan Regional Council (Emrc)

[2020] FWC 6027

[2020] FWC 6027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhys Brooker
v
Eastern Metropolitan Regional Council (EMRC)
(U2020/9161)

DEPUTY PRESIDENT BINET PERTH, 10 NOVEMBER 2020

Application for an unfair dismissal remedy – failure to comply with Directions – application to dismiss pursuant to s.399A – application dismissed.

[1] On 3 July 2020, Mr Rhys Brooker (Mr Brooker) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was Eastern Metropolitan Regional Council (EMRC).

[2] On 20 July 2020, ERMC filed a response to the Application which raised the jurisdictional objection that the Applicant was not dismissed.

[3] On 25 August 2020, the Parties participated in a telephone conciliation with a FWC staff conciliator however the matter could not be resolved.

[4] The Application was allocated to Deputy President Binet and on 3 September 2020, the parties were issued with a Notice of Listing directing them to attend a conference at 4.00pm (AWST) on Tuesday, 27 October 2020.

[5] Ms Angela Wolstencroft of EMRC and Ms Vishan Kakara Atchamah and Ms Chloe Siviour of Minter Ellison as the Respondent’s Representative, both appeared in person at the Fair Work Commission.

[6] Mr Brooker failed to attend the Conference. My Chambers telephoned Mr Brooker and left a voice message asking if he was attending the conference in-person and requesting that he urgently contact Chambers. Mr Brooker did not return the call.

[7] On 2 November 2020 EMRC applied to have the Application dismissed pursuant to section 399A of the FW Act (Dismissal Application).

[8] Section 399A of the FW Act provides:

“399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: for another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: the FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.”

[9] On Monday 2 November 2020, Mr Brooker was invited to file submissions providing reasons why the FWC should not dismiss his application and evidence or other documentary material supporting those reasons. This material was to be provided to the FWC and ERMC by 4pm on Friday 6 November 2020.

[10] Mr Brooker was also notified that if he did not comply with the directions and file submissions by this date, that his application for an unfair dismissal remedy could be dismissed.

[11] To date the FWC has not received any further communication from Mr Brooker.

[12] The Explanatory Memorandum states the FWC may exercise its discretion to dismiss an application under this provision in situations which include the following:

Where an applicant fails to attend an FWC proceeding relating to the matter without providing prior advice and/or without any reasonable excuse for their failure to attend” 1

[13] On the application of EMRC and in the exercise of my discretion under section 399A of the FW Act, I have decided to dismiss the Application on the ground that Mr Brooker unreasonably failed to comply with a direction issued by the FWC to attend a conference conducted by the FWC.

[14] Consequently, the Application is dismissed pursuant to section 399A(1)(a) and (b) of the FW Act. An Order to this effect [PR724425] will be with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR724424>

 1   Fair Work Amendment Bill 2012 (Cth), Explanatory Memorandum, page 36.